445 S.W.3d 469
Tex. App.2014Background
- Lewisville ISD sued the Mandels and Koslow to collect delinquent 2011 ad valorem taxes on the Mandels' Plano home; the City and the County intervened for their respective 2011 taxes.
- The trial court rendered a final default judgment against the Mandels (and in rem against Koslow) foreclosing tax liens and ordering sale of the property.
- The property was sold at a sheriff's sale to Claussner; the Mandels filed a restricted appeal challenging the default judgment and the sale.
- An emergency writ of possession was issued after judgment; the Mandels obtained a stay, but the constable proceeded to execute the writ, prompting mandamus relief requests in this court.
- The appellate court ultimately affirmed the default judgment and tax sale, lifted the stay, and dismissed the mandamus petition as moot.
- The opinion analyzes service of citation, amendment of pleadings, intervention by taxing units, and notice procedures for sale under Texas tax-suit rules.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Ross Mandel properly served in strict compliance? | Mandels allege incomplete return lacking service hour. | Mandel contends hour missing violates rule 107. | Yes; service complied with rule 107 as amended; hour not required. |
| Did Lewisville ISD need to serve an amended petition by citation for 2011 delinquent taxes? | Amendment reshaped the claim; new service required. | Rule 21a service suffices per In re E.A. and related authority. | No; service under rule 21a satisfied due process and enabled judgment. |
| Were intervening taxing units properly served or confer jurisdiction without new citation? | Intervenors named in citations could join without further service. | Rule 117a(4) permits joinder without additional citation if named in the citation. | Intervenors were properly joined without separate service. |
| Was there due process in notice and service with respect to the sale? | Faces Flowers due process concerns about notice when receipt is unproven. | Foreclosure notice given; sale conducted with statutory compliance; record shows notice of sale via sheriff's return. | No denial of due process; notice and sale procedures complied with law. |
| Did the record show proper notice of the order of sale under tax code? | Record silent on whether notice was sent; Flowers concerns may apply. | Silence does not establish non-notice; sheriff's return and §34.01 compliance support notice. | Notice of sale satisfied; silence on notice does not demonstrate reversible error. |
Key Cases Cited
- Conseco Fin. Servicing v. Klein Indep. Sch. Dist., 78 S.W.3d 666 (Tex. App.—Houston [14th Dist.] 2002) (Rule 2/117a compliance for delinquent tax suits; due process via notice to defendant)
- Mexia Indep. Sch. Dist. v. City of Mexia, 134 Tex. 95, 133 S.W.2d 118 (Tex. 1939) (due process in notices for tax proceedings; interventions permitted)
- Sgitcovich v. Sgitcovich, 241 S.W.2d 142 (Tex. 1951) (notice and due process in judgment notices)
- Flowers v. Jones, 547 U.S. 220 (U.S. 2006) ( Flowers due process concerns in tax foreclosures; distinguishable from judicial sale)
- Clark v. Wilcox, 31 Tex. 322 (Tex. 1868) (time is date and manner, not hour, for service under old regime)